Citation Nr: 0609527
Decision Date: 03/31/06 Archive Date: 04/07/06
DOCKET NO. 97-20 339A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for a left ear disorder.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
M. Vavrina, Counsel
INTRODUCTION
The veteran served on active duty from June 1947 to April
1952.
Initially, this case came before the Board of Veterans'
Appeals (Board) on appeal from a July 1994 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia. In July 1998, the Board remanded the
case to the RO for additional development. In April 2003,
the Board determined that new and material evidence had been
received to reopen the veteran's service-connection claim for
a left ear disorder, reopened the claim and sent it to the
Board's Evidence Development Unit (EDU), to undertake
additional development. See 38 C.F.R. § 19.9(a)(2) (2002).
In a June 2003 letter, the veteran was notified of such
development as required by Rule of Practice 903. 38 C.F.R. §
20.903 (2002). However, the United States Court of Appeals
for the Federal Circuit (Federal Circuit) invalidated 38
C.F.R. § 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.
2003). And, in September 2003, the Board remanded the case
for initial consideration of the evidence obtained by the EDU
and further development. VAOPGCPREC 1-03. The case is now
before the Board for further appellate consideration.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
During the pendency of this appeal, the United States Court
of Appeals for Veterans Claims (Court) issued a decision in
the consolidated appeal of Dingess/Hartman v. Nicholson, Nos.
01-1917, 02-1506, 2006 WL 519755 (U. S. Vet. App. Mar. 3,
2006), which held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service-connection claim, including the
degree of disability and the effective date of an award. In
the present appeal, the veteran was not provided with notice
of the type of evidence necessary to establish an initial
disability rating or effective date, if service connection is
granted on appeal. On remand, the VA must do so.
In the decision reopening the veteran's claim, the Board
noted that private treatment records revealed that, in May
1985, the veteran was treated for infection of the ears,
diagnosed with otitis externa, and was noted to be positive
for tinnitus since Korea in 1951; that, in January 1996, the
veteran complained of left ear pain and headaches and an
audiological examination revealed mild sensorineural hearing
loss, bilaterally; and that a July 1998 record includes a
diagnosis of chronic left ear trouble. The Board also
observed that VA medical records show that, in February 1993,
the veteran complained of chronic left ear discharge with
pain and tinnitus since his service and was seen for chronic
otitis of the left ear; that July 1993 audiological
examination findings met the definition of impaired hearing
delineated in 38 C.F.R. § 3.385; and that, in September,
October and December 1993, the veteran was seen for a
diagnosis of chronic otitis media of the left ear and
conductive hearing loss. At a May 2002 VA audiological
examination, the examiner determined that the veteran had
severe mixed hearing loss in the right ear, and moderate
sensorineural hearing loss in the left ear. The examiner's
review of the veteran's claims file suggested treatment for
recurrent bilateral external otitis since the late 1940s for
the right ear, and since the early 1990s for the left ear.
The examiner opined that the veteran's complaints of onset of
tinnitus was plausible, if he served in the combat noise
conditions in Korea that he had described and that his
current hearing loss was consistent with a history of noise
exposure and aging. Similarly, a June 2002 VA ear disease
examination included a diagnosis of bilateral asymmetric
hearing loss, right worse than the left, which appeared
consistent with a previous history of noise exposure and
traumatic noise.
In compliance with the September 2003 remand, in a December
2004 letter, VA asked the veteran to complete, sign and
return an enclosed NA Form 13055, Request for Information
Needed to Reconstruct Medical Data, noting that there was a
strong possibility that his service medical records were
destroyed by the 1973 fire and the National Personnel Records
Center (NPRC) and afforded the veteran a VA examination. The
Board notes that the veteran did not respond to the December
2004 letter. In response to inquiries for service personnel
and medical records, the NPRC sent a duplicate copy of the
veteran's DD Form 214, noting "mailed fire related all
sent" and that it had no "SMRS [service medical records] or
SGOS [Surgeon General Office records]." It appears that
most of the veteran's service medical records are in the file
and, if any are missing, they would be between May 1950 and
April 1952. In July 1995 and December 2002 VA Forms 21-4138,
the veteran asserts that he served in combat in Korea on the
front line for 96 days, having served with the 15th AAA AW BN
SP, 32d Regiment of the Army's 7th Infantry. This appears to
be confirmed by the veteran's DD Form 214, which shows that
he was awarded the Korean Service Ribbon and Bronze Stars for
participation in two of the ten campaigns designated for the
Korean War, the UN Offensive (September 16 to November 2,
1950) and the CCF Intervention (November 3, 1950 to January
24, 1951).
In the case of a veteran who engaged in combat with the enemy
in active service with a military, naval, or air organization
of the United States during a period of war, the Secretary of
the VA shall accept as sufficient proof of service connection
of any disease or injury alleged to have been incurred in or
aggravated by such service satisfactory lay or other evidence
of service incurrence or aggravation of such injury or
disease, if consistent with the circumstances, conditions, or
hardships of such service, notwithstanding the fact that
there is no official record of such incurrence or aggravation
in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38
C.F.R. § 3.304(d) (2005). On remand, VA should ask to the
service department to verify whether the above mentioned
battalion and Army commendations are evidence of that the
veteran participated in combat during the Korean War in 1950
and 1951.
The October 2005 VA examiners failed to give the etiological
opinions requested in the September 2003 remand. On remand,
the claims file should be reviewed by the October 4, 2005
examiner, if available, to provide the requested etiological
opinions. Therefore, this case must be remanded for
compliance with the Board's September 2003 remand. Stegall
v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board
confers on the veteran or other claimant, as a matter of law,
the right to compliance with the remand order).
Finally, although a supplemental statement of the case (SSOC)
was issued in January 2006, the appeal was sent to the Board
without it being sent to the veteran's representative for
preparation of a VA Form 646. On remand, another SSOC should
be issued, after which the veteran's representative should be
given an opportunity to submit further argument in support of
the veteran's claim. 38 C.F.R. § 20.600 (2005).
Accordingly, the case is REMANDED for the following action:
1. The VA must review the entire file
and ensure for the issue on appeal that
all notification and development
necessary to comply with 38 U.S.C.A.
§§ 5103(a) and 5103A (West 2002 & Supp.
2005) and 38 C.F.R. § 3.159 (2005)), as
well as VAOPGCPREC 7-2004, is fully
satisfied. In particular, VA must send
the veteran a corrective notice, that
includes: (1) an explanation as to the
information or evidence needed to
establish a disability rating and an
effective date, if service connection is
granted, as outlined by the Court in
Dingess/Hartman v. Nicholson, Nos. 01-
1917, 02-1506, 2006 WL 519755 (U. S. Vet.
App. Mar. 3, 2006), and (2) requests or
tells the veteran to provide any evidence
in his possession that pertains to his
claim. The claims file must include
documentation that there has been
compliance with the VA's duties to notify
and assist a claimant as set forth in the
VCAA as specifically affecting the issue
on appeal.
2. Following completion of 1 above, VA
should send a request to the Department
of the Army for an opinion as to whether
it is likely that the veteran
participated in combat. In particular,
VA should send copies of the veteran's
July 1995 and December 2002 VA Forms 21-
4138, stating that he served with the
15th AAA AW BN SP, 32d Regiment of the
Army's 7th Infantry, and his DD Form 214,
which reflects that he was awarded the
Korean Service Ribbon and Bronze Stars
for participation in the UN Offensive
(September 16 to November 2, 1950) and
the CCF Intervention (November 3, 1950 to
January 24, 1951) during the Korean War.
If the requested opinion cannot be made,
please have the service department so
indicate.
3. After completion of 1 and 2 above,
the claims file should be sent to an
appropriate specialist, if available, the
VA examiner who examined the veteran on
October 4, 2005, to review the record.
The examiner should review all of the
veteran's medical records and history,
including but not limited to his DD Form
214, the service department's response
relating to the veteran's participation
in combat, the multiple service notations
describing treatment for recurrent ear
infections, and the 2002 and 2005 VA and
ear disease and audiological examination
reports. The examiner should render an
opinion as to whether it is at least as
likely as not that the veteran has a left
ear disorder related to his in-service
treatment for ear infections.
Additionally, the examiner should render
an opinion as to whether it is at least
as likely as not (50 percent probability
or more) that the claimed left ear
disorder was incurred during the
veteran's active service (including but
not limited to as a result of acoustic
trauma), became manifest to a compensable
degree within a one year period of his
discharge from service, or is otherwise
related to his active service. Lastly,
the VA examiner should render an opinion
as to whether it is at least as likely as
not that the claimed left ear disorder is
related to any post-service event (such
as working as a machine operator for
Georgia Craft Co. without ear protection)
or disease, including due to aging. If
the etiology of the claimed disorder is
attributed to multiple factors/events,
the examiner should specify which
symptoms/diagnoses are related to which
factors/events. The VA examiner should
attempt to reconcile any contradictory
evidence regarding the etiology of the
veteran's left ear disorder. The
complete rationale for all opinions
expressed should be set forth in written
report. If any requested opinion cannot
be given, the examiner should state the
reason why.
4. After completion of the above, VA
should readjudicate the appellant's
claim. If any determination remains
unfavorable to the appellant, he and his
representative should be provided with a
supplemental statement of the case and be
afforded an opportunity to respond before
the case is returned to the Board for
further review. In particular, VA should
solicit, and document its efforts to
obtain a VA Form 646, or equivalent, from
the appellant's representative prior to
recertifying the appeal to the Board.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. The
purpose of this remand is to comply with due process of the
law and further develop the claim. No action by the
appellant is required until he receives further notice. The
Board intimates no opinion, either legal or factual, as to
the ultimate disposition warranted in his case, pending
completion of the above. The appellant and his
representative have the right to submit additional evidence
and argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).